Lawfulness of corporal punishment

Home

Corporal punishment is lawful in the home.

Children are protected from some violence and abuse under the Child Act (2001, in force 2002) and the Domestic Violence Act (1994). Chapter 3 of the Child Act covers offences in relation to the health and welfare of children. Article 31 punishes “any person who, being a person having the care of a child – (a) abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or permits him to be so abused, neglected, abandoned or exposed….” This Act repeals the Juvenile Courts Act (1947), the Women and Girls Protection Act (1973) and the Child Protection Act (1991). The definition of domestic violence in the Domestic Violence Act (article 2) includes “(a) wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury” and “(b) causing physical injury to the victim by force or threat to engage in any conduct or act which is known or ought to have been known would result in physical injury”, and including by a person against a child.

Schools

Corporal punishment of boys is lawful in secondary schools under regulations made under the Education Act (1996). Education Ministry guidelines reported in 2003 advise that caning should not usually be given for “light offences” (e.g. “keeps a moustache, or beard; has long hair (for boys); disturbs class/teacher; does not wear school uniform properly; is late for school”) but up to two strokes can be given for “moderate offences” (e.g. “repeats light wrongdoing more than three times; in involved in truancy; adopts extreme hair fashion, or hair colouring; more than one pierced earring on each side of the ear; lies, copies school work, show untrustworthy behaviour”) and 3-7 strokes for “serious offences” (e.g. “repeats a moderate wrongdoing for the third time; causes or starts a fight; fights back, punches or threatens, or injures teacher/prefect/student; is rude towards teacher/prefect/student; extorts from teacher/prefect/student; brings/uses weapons or dangerous tools; is involved in an illegal group; uses bad or obscene language; steals, robs, or breaks into prohibited areas; vandalises school property; uses explosives”). In 2004, the Ministry expanded the power of caning students to teachers other than headmasters, principals and those involved in disciplining students. In “vernacular schools” (Chinese-medium schools funded by government allocations), caning has long been used in primary and secondary schools by teachers as well as heads and on girls as well as boys. Since July 2007, corporal punishment in schools has been regulated by the amended Education Regulations (Student Discipline) 2006, which replace the education rules set out in1957 and 1959.

Penal system

Corporal punishment is lawful as a sentence for crime (mandatory for some, discretionary for others). Article 91 of the Child Act, applicable to children aged between 10 and 18 years, states that the Court for Children may “order the child, if a male, to be whipped with not more than ten strokes of a light cane – (i) within the Court premises; and (ii) in the presence, if he desires to be present, of the parent or guardian of the child”. Article 92 states the manner of executing the whipping: “The following provisions shall be followed when executing the order of whipping: (a) before executing the whipping, the child shall be examined by a medical officer to certify that the child is in a fit state of health to undergo the whipping; (b) the person shall use a light cane with average force without lifting his hand over his head so that the child's skin is not cut; (c) after inflicting a stroke, he shall lift the cane upward and not pull it; (d) whipping may be inflicted on any part of the body except the face, head, stomach, chest or private parts; (e) the child shall wear clothes; and (f) if during the execution of the whipping the medical officer certifies that the child is not in a fit state of health to undergo the remainder of the whipping, the whipping shall be finally stopped.”

Whipping is the prescribed punishment under the Penal Code and other laws for an increasingly wide range of crimes, including immigration offences, drug related offences, rape and other sex offences, grievous bodily harm and firearms offences. There have been proposals to prescribe caning for vandalism, traffic offences, and illegal motorbike racing. Both the lower courts and the high court may order caning of juveniles, who must be certified medically fit for the infliction. In 1990, the Federal Constitution was amended to allow state Shari’a courts to sentence offenders to caning and imprisonment instead of just imposing fines, though where punishments exceed what is permitted by the Constitution (e.g. amputations), implementation has been controversial. The Shari’a Criminal Offences (Hudud and Qisas) Enactment provides for corporal punishment including whipping, stoning and amputation for hudud offences including theft, robbery, illicit sex, alcohol consumption and apostasy.

According to the UN press release on the Committee’s examination of Malaysia (26 January 2007), the Attorney General stated that the government was committed to withdrawing its reservation to article 37 of the Convention on the Rights of the Child, that “[c]aning or whipping of children was unacceptable and was against the Convention, and he saw no problems with amending the Child Act to reflect that”. In March 2007, the annual general meeting of the Malaysian Bar, comprising 12,000 lawyers across the country, unanimously adopted a motion calling for the declaration of whipping as cruel, inhumane and degrading, and the Bar pushed for abolition of the whipping sentence in various laws.

According to the UN press release on the Committee’s examination of Malaysia (26 January 2007), the Attorney General stated that the government was committed to withdrawing its reservation to article 37 of the Convention on the Rights of the Child, that “[c]aning or whipping of children was unacceptable and was against the Convention, and he saw no problems with amending the Child Act to reflect that”. In March 2007, the annual general meeting of the Malaysian Bar, comprising 12,000 lawyers across the country, unanimously adopted a motion calling for the declaration of whipping as cruel, inhumane and degrading, and the Bar pushed for abolition of the whipping sentence in various laws. In January 2007, under examination by the Committee on the Rights of the Child, the government stated its intention to remove the provisions in the 2001 Child Act authorising corporal punishment (30 January 2007, CRC/C/SR.1216, para. 8). In June 2007, it was reported that the Women, Family and Community Development Ministry was proposing amendments to the Child Act 2001 to abolish the provision that allows the Court of Children to order caning of child offenders (reported in thestaronline, 28 June 2007).

Corporal punishment is lawful as a disciplinary measure in penal institutions. The Prison Act (1995) allows for punishment with a rattan for disciplinary offences (article 50).

Alternative care

Corporal punishment is lawful in other institutions and forms of childcare. The Child Act (see above) applies.

Workplace

There is no explicit prohibition of corporal punishment of children in situations of employment. Applicable legislation includes the Children and Young Persons (Employment) Act.

Prevalence research

In 2005, the Human Rights Commission of Malaysia conducted an online poll on school corporal punishment. Of the 64 respondents to the question “Is caning students in schools a violation of human rights?” 31.3% agreed, 57.8% disagreed, and 10.9% were unsure (www.suhakam.org.my/en/).

In 2003, research into human rights awareness among secondary school teachers, students and administrators conducted by researchers from local universities assigned by the Human Rights Commission of Malaysia (Suhakam) found the cane being used regularly. In the survey of 5,754 students, 52% agreed that caning commonly happened in their schools, more often in rural schools than urban schools; around 80% of cases occurred at technical schools; 79.5% of teachers and 71.8% of administrators agreed that persistent offenders should be caned. (Reported in “Spare the rod?”, New Straits Times, Kuala Lumpur, 21 March 2004)

A comparative study of 10,073 children aged 9-17 years across East Asia and the Pacific by UNICEF and Research International Asia (Thailand) in 2001 found that 25% of those surveyed in Malaysia reported having been beaten by their parents. The reason for children finding it difficult to talk to teachers was given by 2% of the children as because the teachers “beat them”. (UNICEF, 2001, Speaking Out! Voices of Children and Adolescents in East Asia and the Pacific)

Recommendations by human rights treaty bodies

“The Committee, while welcoming the State party’s statement that it will amend the provisions of the Child Act 2001 (Act 611) which provide for caning of male children, expresses its deep concern that caning is still a lawful penal sanction provided by the Child Act and that it is also used as a disciplinary measure in penal institutions.

“The Committee urges the State party to immediately abolish all forms of cruel, inhuman or degrading punishments, including caning and other forms of corporal punishment imposed on persons having committed a crime when under the age of 18 years and as a disciplinary measure in penal institutions, taking into account the Committee’s General Comment No. 8 (2006) on the right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (CRC/C/GC/8).

“The Committee notes with appreciation that violence against children, such as physical, sexual, mental and emotional violence as well as abandonment and neglect are addressed in the Child Act 2001 (Act 611) and that since August 2002 incest has been criminalized by the Penal Code (Act 574). It also notes with appreciation that the Domestic Violence Act 1994 (Act 521) protects the child against violence within the family. It also notes with appreciation the State party’s willingness to establish a toll-free helpline for children. Despite the measures taken to provide protection against violence, abuse and neglect, the Committee notes with grave concern that domestic violence, including violence against children in the family, remains a serious human rights problem in the State party. The Committee notes with concern that due to the strong social and cultural taboos victims and witnesses rarely report these cases, although there are established mechanisms to receive reports on child abuse and neglect, including a toll-free helpline “Teledera” which is, however, only limited to reporting on child abuse cases. It also notes with concern that corporal punishment in the home is lawful.

“In the light of article 19 and other relevant provisions of the Convention, and taking into account the recommendations of the Committee adopted on its Day of general discussion on violence against children within the family and in schools held on 28 September 2001 (CRC/C/111, paras. 701-745), the Committee urges the State party to:

c) prohibit by law all forms of corporal punishment in the home and to conduct a comprehensive study to assess the nature and extent of corporal punishment in the family;

d) continue to sensitize and educate parents, guardians and professionals working with and for children by carrying out public education campaigns about the harmful impact of violent forms of “discipline” and promote positive, non-violent, participatory methods of child-rearing; ...

“With reference to the United Nations Secretary-General’s Study on violence against children, the Committee recommends that the State party:

1. take all necessary measures for the implementation of the overarching and setting-specific recommendations contained in the report of the independent expert of the United Nations Study on violence against children (A/61/299) taking into account the outcome and recommendations of the Regional Consultations for East Asia and the Pacific (held in Thailand from 14 to16 June 2005);
   
   
2. use these recommendations as a tool for action in partnership with civil society and in particular with the involvement of children to ensure that every child is protected from all forms of physical, sexual and mental violence and to gain momentum for concrete and, where appropriate, time-bound actions to prevent and respond to such violence and abuse; and
   
   
3. consider seeking technical cooperation from UNICEF, OHCHR and the World Health Organization (WHO).

“The Committee notes with concern that corporal punishment of boys is still a lawful discipline measure and used in secondary schools.

“The Committee reiterates that corporal punishment is not compatible with the provisions of the Convention and is inconsistent with the requirement of respect for the child’s dignity, as specifically required by article 28, paragraph 2, of the Convention. Therefore, the Committee recommends that the State party prohibit by law all forms of corporal punishment in schools.”
(2 February 2007, CRC/C/MYS/CO/1 Unedited Version, Concluding observations on initial report, paras. 48, 49, 57, 58 (c and d), 59 (a, b and c), 76 and 77)